• In the case of Thamesmead Town ltd v Allotey 1998 30 HLR 1052, it was held that there were two requirements for the enforceability of a positive covenant against a successor intitle to the covenantor.
  • Where the apportionment of fees is possible the defendant cannot be liable for fees going to facilities for which he has no right to use.

Facts of the Case

  • LCC constructed a large estate called Thamesmead. In July 1987 all land at Thamesmead became vested in TT.
  • Under the right to buy legislation Mr and Mrs B, being secure tenants, exercised the right to buy their flat from C and the property was transferred to them in November 1988.
  • The transfer contained certain additional rights, including inter alia, the right to use the roads and paths owned by C.
  • By clause 3 of the transfer B covenanted for themselves that their successors in title that they or their successors in tittle would observe and perform the restrictions and conditions set out, including three positive covenants.
  • Of the positive covenants, one imposed an obligation to contribute and pay on demand a fair proportion of all costs in relation to, inter alia, cleaning all roads and footpaths along with maintenance of the landscaped and communal areas.
  • Clause 6 of the 1988 transfer provided that in the event of the disposal of the property by B, they would include in the transfer a provision that their successor in title would enter a deed of covenant similar in terms to clause 3.
  • The transfer did not propose to give any rights to a transferee over the landscaped and communal areas on the estate nor did it require C to maintain such areas.
  • In 1992, B transferred their flat to A but in breach of clause 6, did not include the provision required by that clause.
  • After A took possession of the property, C demanded that he pay them for works performed by them, in accordance with clause 3.
  • A refused to pay and in 1993 C issued proceedings against him claiming the monies in respect of the period My 1992 to arch 1993.

Issues in Thamesmead Town ltd v Allotey 1998 30 HLR 1052

  • The issues in this case concern whether the transfer of a property can carry the obligation to maintain communal areas and the right to use such areas.
  • Whether the positive covenant could be enforceable against a successor in title and therefore monies owed.

Held at first instance:

  • The judge at first instance held that a successor in title to a covenantor may not be entitled to take the benefit of a transaction without undertaking the burden imposed by the transaction and allowed C’s claim to the extent of GBP 41.65 on the basis that some rights were conditional on payment of costs and some rights had been enjoyed by A.
  • C appealed.

Held by Court of Appeal:

  • Appeal dismissed.

Peter Gibson LJ

  • There were two requirements for the enforceability of a positive covenant against a successor in title to the covenantor:
  • The condition of discharging the burden had to be relevant to the exercise of the rights that enabled the benefit to be obtained.
  • The successors in title had to have the opportunity to choose whether to take the benefit or, having taken it, to renounce it, even if only in theory, and thereby to escape the burden and that the successors in title could be deprived of the benefit if they failed to assume the burden.
  • The judge assessed and applied Rhone v Stephens.
  • The successor in title must by right be entitled to the benefit but as D had no right to use the communal areas under the original contract, C had no obligation to maintain the communal areas.

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